When people mention the judicial system, usually this drums up ideas of a independent branch of state, holding decisions to account and upholding the law. However, in the US the highest court is the Supreme Court and it is considered highly political, as the public know the political persuasions of the judges and the judges are appointed by the President.
There are 9 justices, meaning that the decisions made on the court are often won by only one swing vote. The votes are usually split by the 4 progressive judges voting differently to the 4 conservative judges, often with the final judge casting the deciding vote.
Controversially, a new supreme court justice was nominated by Donald Trump and confirmed by the Republican led senate and is now sitting on the supreme court. Amy Coney Barrett is a conservative judge and replaced Ruth Bader Ginsburg, a liberal justice, who died earlier this year. This means the Supreme Court is now 6-3 in favour of conservative judges. Ruth Bader Ginsburg was considered a pioneer in the fight for women’s rights and was a proponent of equal marriage and as such, was extremely popular.
Barrett is the polar opposite from Bader Ginsburg. She has been a staunch conservative throughout her short 3 year judicial career. She has signed papers stating she disagrees with the Roe vs Wade court decision, which allows women to choose to have an abortion. She has made it clear that she believes marriage is between ‘a man and a woman’. Although these comments were made in 2015 and 2016, it is possible that Coney Barrett may undo many of the things Bader Ginsburg stood for.
The reason the appointment was considered controversial was it was only pushed through a couple of weeks before the next election. The Republicans had blocked President Obama’s nomination in 2016 due to it being in the last year of a presidential term. Many senators have said on record they would never confirm a justice in the final term of a presidency. Despite this, they went on to confirm Coney Barrett and in doing so they were branded hypocrites.
Power begets more power. If the election is contested and the result is disputed in the Supreme Court, the chances of the court siding with the Republican candidate are almost guaranteed now. The courts will make decisions on voter suppression policies (often carried out in Republican led states) and reliability and the efficacy of postal ballots. Simply put, republicans and conservatives are better at politics and because of this, the election of Republican candidates and presidents becomes more likely.
If Democrats want to be a winning party and make a significant difference, they will have to come up with radical proposals to counteract the highly effective politics the republican party plays. A Democratic president could pack the court – increasing the number of judges on the supreme court through congressional and senate approval. There are no laws or constitutional amendments stating that the number of judges on the court has to be fixed. The number of judges could be changed to 13 meaning there could be a progressive majority of 7 to 6. Some Democrats have described this as unpacking the bias in the courts. A larger court also may be better at making decisions as there’s a wider variety of perspectives representing the american population and their varying views.
If Joe Biden wins the upcoming election, radical policies like packing the court and ending the filibuster will make everlasting changes and increase the chances of progressive policies being implemented across the US. Abolishing the electoral college, which led to the least popular candidate being elected, is another policy proposal that will give Americans more power over who governs them.
Although the appointment of Amy Coney Barrett may be disheartening for many progressives, it can also be considered as a catalyst for a new way of governing for Democrats and it involves becoming a winning party who are able to make changes that fundamentally shift the power in Washington towards that of the electorate.